#Section377 Debate: Government Has No Objection If Supreme Court Decriminalises Homosexuality

The Central government today put the onus on the Supreme Court to decide on the criminality of Section 377 of the Indian Penal Code (IPC), which criminalises homosexuality. Submitting affidavit in the apex court, Additional Solicitor General Tushar Mehta told the five-judge constitution bench that the Centre will leave the matter of the constitutionality of Section 377 to be decided by the Supreme Court.

Supreme Court is hearing petitions challenging a 158-year-old Victorian-era law that criminalises homosexuality.

The government said that it is fine if Supreme Court strikes down Section 377 and declares it unconstitutional. However, the Centre has refused to explicitly mention its stand on decriminalisation of homosexuality.

“We leave it to the wisdom of SC”, said the government in its affidavit filed today.

AFP

Government not opposing decriminalisation of homosexuality is a big relief to the LGBTQ community. During the hearing yesterday, the apex court had observed that colonial laws like Section 377 will have to pass the rigours of the Constitution.

The Centre also told the Supreme Court that while it would leave the issue of decriminalising homosexuality to the court, there should be safeguards against bestiality and harassment of children.

To this, Justice Chandrachud, who is on the five-judge Constitution bench hearing the matter, retorted that the Supreme Court is not considering kinks in sexual behaviour.

"We want that two gay men holding hands and walking down Marine Drive are not arrested," Justice Chandrachud said.

Opening his arguments, former Attorney General and senior advocate Mukul Rohatgi, appearing for a petitioner and dancer Navtej Jauhar, said he wanted a "declaration" from the apex court that the rights of those who formed sexual minority are protected under Article 21 (right to life and liberty) and the first issue would be to test the correctness of the 2013 judgement.

AFP

He said "pre-constitutional law like section 377" will have to go as it does not conform to the Constitution.

"What is the 'order of nature'? Was it the order of nature in 1860? What is the order of nature that can change with the passage of time? Laws made 50 years ago can become invalid over time," he submitted.